Yesterday the Supreme Court agreed to hear one of the biggest
First Amendment cases in decades, and the facts are
heart-wrenching.

A jury awarded $5 million for emotional distress suffered by a
father of a Marine killed in Iraq. The father, Albert Snyder, had
sued members of the Westboro Baptist Church of Topeka, Kansas who
protested his son's funeral with signs saying things like, "God
Hates You," and "Thank God for Dead Soldiers," and "Matt in Hell."*

The funeral for Marine Lance Corporal Matthew Snyder was held in
Maryland, but word of the private funeral made it to Rev. Fred
Phelps, Sr., the Westboro pastor, and he and his group traveled
to Maryland to protest. The protesters say soldiers dying is
God's way of punishing the United States' tolerance of
homosexuality.

The Fourth Circuit later threw out the verdict on First Amendment
grounds. Though the Court said the remarks were "utterly
distasteful," they held that they were not actual assertions of
facts about the family (which could be libelous), and that they
involved matters of public concern (gays in the military,
homosexuality, American morals, etc.).

This is one of those speech cases that is really difficult to
address from a legal standpoint. Phelps and his followers follow
all the rules -- they stay the requisite distance away and get
the proper gathering permits. In other words, they make sure to
break no local laws.

But one can only imagine the trauma they put Snyder and other
similar families through, especially considering that their
anti-gay protests have a tangential link, at best, to the issues
surrounding the wars in Iraq and Afghanistan.

As Adam Liptak at The New York
Times noted, the Court will have to address whether its 1988
decision barring of Jerry Falwell from suing Hustler for
intentional infliction of emotional distress applies in this case
as well. One of the arguments that Snyder advances is that that
standard should not apply in a disagreement between two private
individuals.

In other words, Snyder is giving the Court an opportunity to
uphold Falwell but give private individuals recourse in
this sort of situation.

The Supreme Court will not take up the case until the fall, which
gives all of us some time to try and figure out how this one
should fall.

The emotional answer is immediate, but the legal answer is much
more murky. Or maybe it's not at all, and we just have to accept
what we've all been told (that which is trite but true) since we
first learned about the First Amendment. It sometimes means
hearing the worst of all speech and understanding that freedom
does have its costs.

As always, the infallible
SCOTUSblog has full coverage of the case, including the
petition for cert.

UPDATE: Margie Phelps, the attorney representing Fred
Phelps and the Westboro Baptist Church in this matter contacted
us and said that the "Matt In Hell" sign was not present at the
funeral of Matthew Snyder. That sign refers to Matthew Shepherd,
as noted in the picture's caption.

The Snyder petition for cert (p. 7) states that the "Matt
in Hell" sign was present; Phelps disputes that in the
respondents' opposition brief (p. 4). Both, as noted above, are
available at SCOTUSblog.